People v. Bernette

• Decision Date: 24 March 1970
• Docket Number: Nos. 39685,39686,s. 39685
• Parties: The PEOPLE of the State of Illinois, Appellee, v. Herman L. BERNETTE et al., Appellant.
• Court: Illinois Supreme Court

Page 793

258 N.E.2d 793

45 Ill.2d 227

The PEOPLE of the State of Illinois, Appellee, v. Herman L. BERNETTE et al., Appellant.

Nos. 39685, 39686.

Supreme Court of Illinois.

March 24, 1970.

Rehearing Denied May 26, 1970.

Thomas P. Cernek, Jason E. Bellows and Hermes C. Kitsos, Chicago, for appellant.

William G. Clark, Atty. Gen., Springfield, and John J. Stamos, State's Atty., Chicago (Fred G. Leach, Asst. Atty. Gen., and Elmer C. Kissane and Patrick A. Tuite, Asst. State's Attys., of counsel), for the People.

PER CURIAM:

Defendants, Herman Bernette and Martin Tajra, were jointly indicted along with Samuel Young and Joe Ray Garrett for the murder of Richard Williams, who was slain in the course of an armed robbery. Bernette and Tajra were tried together in the criminal court of Cook County and found guilty. The jury fixed Bernette's punishment at death while Tajra was sentenced to a term of imprisonment of 75 to 150 years. On direct appeal, this court reversed Bernette's conviction and remanded for new trial. (People v. Bernette, 30 Ill.2d 359, 197 N.E.2d 436.) On the basis of the Bernette decision, the appellate court similarly reversed Tajra's conviction and remanded the cause for a new trial. (People v. Tajra, 58 Ill.App.2d 479, 208 N.E.2d 9.) Subsequently, both defendants were jointly retried, found guilty and punishment as to each was fixed at death. Separate appeals were brought to this court pursuant to Rule 603 (Ill.Rev.Stat.1967, ch. 110A, par. 603) and we consolidated for decision.

The facts surrounding the commission of the crime and the arrest of defendants have been adequately set forth in People v. Bernette, 30 Ill.2d 359, 197 N.E.2d 436, and need not be repeated here.

It is initially claimed by both defendants that the voir dire examination which was conducted violated the standards set out by the Supreme Court in Witherspoon v. Illinois (1968), 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776, which was decided subsequent to defendants' trial.

A review of the record before us indicates that the circumstances under which the Voir dire examination was here conducted were unlike those in Witherspoon. In that case, the court noted that 'the tone was set when the trial judge said early in the voir dire, 'Let's get these conscientious objectors out of the way, without wasting any time on them." (391 U.S. at 514, 88 S.Ct. at 1773.) It is clear, however, that, 'In this case there was no hint of a desire for haste or for a perfunctory examination to see how many jurors could be disqualified on the statutory basis alone. On the contrary, the tone of the proceedings here indicated a sincere desire on the part of the prosecutor and the court * * * to determine the jurors' qualifications according to the standard later held acceptable in Witherspoon.' (People v. Speck, 41 Ill.2d 177, 209, 242 N.E.2d 208, 225; People v. Moore, 42 Ill.2d 73, 246 N.E.2d 99.) In all, 67 veniremen were examined out of which a panel of 12 was chosen. Of the 55 jurors excused, 17 were excused for having expressed conscientious or religious scruples against infliction of the death penalty, or approximately 30% Of all those excused. And of these, it appears that 12 veniremen may have been improperly dismissed, or approximately 21% Of all jurors excused.

At the outset of the Voir dire examination an In camera conference was held to determine the procedure to be followed in qualifying the prospective jurors with regard to the death penalty. It was there decided that each prospective juror would be individually questioned as to his views on capital punishment. Immediately thereafter, the first panel was sworn and qualified by the court. None of the jurors so questioned at that time expressed any reservations, religious or otherwise, against the infliction of the death penalty in a proper case. Moreover, upon further inquiry by the assistant State's Attorney of prospective juror, Barbara Adam, the other prospective jurors being present in the courtroom, the following colloquy occurred:

'Q. Now, ma'am, we would like to inform you that in this case we would be asking for the death penalty as to both defendants, the death penalty. And I know his Honor asked you this but we have to be most certain of this. Would you have any reservations whatsoever if after hearing all the facts in this case and after deciding that these defendants have been proven guilty beyond a reasonable doubt, would you have any reservations whatsoever if you thought that the facts and the case as presented to you merited the death penalty, would you in any way reserve that verdict and would you have any hesitancy in returning a death penalty?

A. Well, I am against the death penalty.

Q. You are against it?

A. Yes.

Q. Well, in other words, you wouldn't return it, is that right?

A. Not for the death penalty, no.

Mr. Boyle: Cause, if the court please.

The Court: Perhaps you misunderstood my question, Mrs. Adams, when I first asked you whether you had any conscientious or religious scruples?

A. I thought you meant just the religious. I misunderstood you then.

The Court: You are excused for cause, Mrs. Adam. You may step out.

(Juror Barbara Adam excused.)

Ruth Carney: I feel the same way. I didn't understand the question.

The Court: Mrs. Carney, you may step out.

(Juror Ruth Carney excused.)

Louise Alois: I do, too.

(Juror Louise Alois excused.)'

It is evident from the examination of the above persons that a sincere effort was made to select a fair and impartial jury. In this same context, it is noteworthy that on at least one occasion one of the defense attorneys requested a venireman be excused because he expressed a negative attitude toward infliction of the death penalty. Further, upon completion of jury selection, the State had remaining 33 of their 40 peremptory challenges. And, 'Even if we make the rather violent assumption that each of the excused jurors, although opposed to capital punishment, would have stated on further examination that they would inflict or consider inflicting the death penalty if the evidence justified, Witherspoon does not require vacation of the death sentence. It is a fair assumption, and indeed almost a certainty, that if the court had ruled that these prospective jurors could not be challenged for cause because they had indicated a willingness to consider the death penalty, the prosecutor would have challenged them peremptorily because of their scruples. The net result would be a jury of the same composition as that which sat in judgment upon the defendant.' (People v. Speck, 41 Ill.2d 177, 213--214, 242 N.E.2d 208, 227; People v. Moore, 42 Ill.2d 73, 246 N.E.2d 299; People v. Mathis, 52 N.J. 238, 245 A.2d 20.) We therefore hold that there was no constitutional error in the impaneling of this jury.

It is next claimed by both defendants that certain comments made by the prosecuting attorney in the presence of the jury were highly inflammatory and prejudicial and operated to deny them a fair trial. A reading of the record clearly shows that many of the statements were inadvertent or prompted by objections of opposing counsel. Of the several statements to which error is assigned, we find only one to be of such a nature to demand our further comment. During cross-examination of a prosecution witness, defense counsel asked that certain records which he has requested be given to him. The assistant State's Attorney responded with the following comment: 'They (the records requested) are not to be furnished to persons who defend criminals in this building.' Such a statement standing alone could have operated to the detriment of the defendants. (Cf. People v. Panczko, 20 Ill.2d 86, 169 N.E.2d 333; People v. Freedman, 4 Ill.2d 414, 123 n.E.2d 317.) However, shortly after making the above statement, the assistant State's Attorney clarified his comments in an apology directed to the jury: 'It is my understanding that I made a statement before that it isn't the function of the state to furnish documents to persons defending criminals in this building. It was an inadvertent statement and I wish to correct that to, knowing that the defendants are presumed innocent and are not criminals until proven so, and to amend that statement to be, to persons defending persons accused of being criminals.' Although we have repeatedly held that improper conduct on the part of the prosecution is to be highly condemned (see People v. Kirk, 36 Ill.2d 292, 222 N.E.2d 498; People v. Savage, 325 Ill. 313, 156 N.E. 310), after reviewing the record in this case, it is our opinion that any untoward statements, when read in their proper context, were either adequately cured or not so prejudicial as to require reversal.

Bernette complains that his representation by court-appointed counsel was of such a low caliber as to deny him his right of effective assistance of counsel. Similarly, Tajra joins in this assignment of error to the extent the conduct of Bernette's trial counsel adversely affected him in the eyes of the jury. We initially take note of the fact that 'Few records examined in the light of sober second sight and calm reflection would fail to reveal * * * that counsel had not made the most of his opportunities. Human error is easily observed by those having the benefit of the second guess.' (People v. Stephens, 6 Ill.2d 257, 260, 128 N.E.2d 731, 732.) With this in mind, we have reviewed the entire record before us, paying close attention to the alleged acts of incompetency and find defendants' claims without merit. Incompetency of counsel such as to constitute a denial of an accused's right to counsel is conduct of such a defective character as to make the defense a farce. (People v. Dean, 31 Ill.2d 214, 218, 201 N.E.2d 405; People v. Reeves, 412 Ill. 555, 107 N.E.2d 861; cf. People v. Morris, 3 Ill.2d 437, 121 N.E.2d 810.) The facts here show that Bernette's attorney conducted his defense against insurmountable odds. Faced with the situation that his...